Version No. 051
Trustee Companies Act 1984
No. 10168 of 1984
Version incorporating amendments as at 1 January 2010
table of provisions
SectionPage
1
SectionPage
Part I—Preliminary
1Short title
2Commencement
3Repealed
4Definitions
5Acquisition or disposal of and entitlement to shares
Part II—Authorization of Trustee Companies
6Trustee companies
7Authorization as trustee company
8Suspension or revocation of authority
Part III—Powers of Trustee Companies
9Trustee company may act as executor or administrator
10Authority for trustee company to obtain probate
11Authority for trustee company to obtain letters of
administration
11AElection by trustee company to administer estate
12Court may act on affidavit of manager etc.
13Appointment as trustee etc.
14Trustee company may be appointed trustee, receiver or
guardian of estate
15Trustee company may act under power of attorney
16Trustee company may be appointed to act as temporary
executor, administrator or trustee
17Executor or administrator may appoint trustee company
18Application for consent
19Managing director or manager may act
20Certain voting rights not exercisable
20APreparation of wills
Part IV—Commissions and Charges
21Commission chargeable by trustee company
21AFee for administering perpetual trust
22Supreme Court may allow additional commission
23Certain commissions prohibited
24Fees for services etc.
Part V—Administration of Estates
25Trustee company to be subject to same duties as individual
26Trustee company may be removed from office by Supreme
Court
27Order for account
28Supreme Court may order audit of estate
29No winding up where estate unadministered
30Winding up by the Court and transfer to new trustee
31Borrowing by trustee company
32Loans from estates to related corporations prohibited
33Liability under guarantee
34Separate accounts of each estate to be kept
35Trustee company to give information to Minister
Part VI—Reserve Liability and Reserve Fund
36Reserve liability and reserve fund
37Reserve fund
38Investments of moneys in reserve fund
39Payments out of reserve fund
Part VII—Common Funds and Investments
40Common funds
41Cash common fund
41AInvestment of money
42Regulations regulating common funds
Part VIII—Claims and Distribution
43Refusal of claim
44Power to make distribution if claimants fail to claim
Part IX—Acquisition of Shares in Trustee Companies
45Restriction on acquisition of shares
46Acquisitions to which section 45 does not apply
47Orders where prohibited acquisitions take place
48Acquisition of shares in trustee companies other than
Victorian companies
49Trustee company not to refuse to register shares
Part X—General
50Convening of meetings
51Reduction of share capital
52Declaration by trustee company
53Act not to preclude other companies from applying for
similar powers
54Testators may appoint their own lawyers
54AOffences by directors
55Regulations
______
SCHEDULES
SCHEDULE 1—Repealed
SCHEDULE 2—Trustee companies
SCHEDULE 3—Repealed
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ENDnotes
1. General Information
2. Table of Amendments
3. Explanatory Details
1
Version No. 051
Trustee Companies Act 1984
No. 10168 of 1984
Version incorporating amendments as at 1 January 2010
1
Trustee Companies Act 1984
No. 10168 of 1984
An Act to re-enact with amendments the law relating to trustee companies, to repeal the Trustee Companies Act 1958 and for other purposes.
BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):
Part I—Preliminary
1Short title
This Act may be cited as the Trustee Companies Act 1984.
2Commencement
The several provisions of this Act shall come into operation on a day or the respective days to be fixed by proclamation or successive proclamations of the Governor in Council published in the Government Gazette.
S. 3
repealed by No. 45/1994
s. 42(Sch. item13.1).
*****
4Definitions
s. 4
(1)In this Act unless inconsistent with the context or subject-matter—
S. 4(1) def. of bank substituted as authorised deposit-taking institution by No. 11/2001 s.3(Sch. item82.1(a)).
authorised deposit-taking institution has the same meaning as in the Banking Act 1959 of the Commonwealth;
Commissioner means the Commissioner for Corporate Affairs under the Companies (Administration) Act 1981;
S. 4(1) def. of corporation amended by No.44/2001 s.3(Sch. item118.1(a)).
corporation has the same meaning as in the Corporations Act;
S. 4(1) def. of domestic partner inserted by No.27/2001 s.8(Sch. 6 item 8.1), substitutedby No.12/2008 s.73(1)(Sch.1 item62.1).
domestic partnerof a personmeans—
(a)a person who is in a registered relationship with the person; or
(b)an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—
(i)for fee or reward; or
(ii)on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);
estate includes all real and personal property of whatever nature or kind committed to the administration or management of a trustee company;
S. 4(1) def. of financial institution amended by Nos 46/1998
s. 7(Sch. 1), 11/2001 s.3(Sch. item82.1(b)).
financial institution means—
(a)an authorised deposit-taking institution;
(b)an insurance company;
(c)a financial corporation to which the Financial Corporations Act 1974 of the Commonwealth as amended and in force for the time being applies;
(d)the trustees or managers of a superannuation fund established by a law of the Commonwealth or of a State or Territory; or
(e)a corporation in respect of which a declaration by the Minister under subsection (4) is in force;
gross value means—
(a)in relation to an estate (other than an estate or any part of an estate in relation to which there is a perpetual trust) the aggregate of—
s. 4
(i)the actual amount paid out of an estate in the due course of administration or management from capital for debts, duties, liabilities and administration expenses and to or on behalf of beneficiaries; and
(ii)the amount of the value at the time of distribution or appropriation of any assets distributed or appropriated in specie to any beneficiary without deduction of any liabilities; or
(b)in relation to the whole or part of an estate in relation to which there is a perpetual trust—the value at the time the whole or part of the estate is committed to the trustee company without deduction of any liabilities;
insurance company means a corporation that is registered under the Life Insurance Act 1945 of the Commonwealth as amended and in force for the time being;
manager includes acting manager;
managing director includes acting managing director;
s. 4
S. 4(1) def. of nominee corporation amended by No.44/2001 s.3(Sch. item118.1(a)), substituted by No. 9/2002 s.3(Sch. item15.1).
nominee corporation means a body corporate whose principal business is the business of holding marketable securities as a trustee or nominee;
prescribed means prescribed by this Act or the regulations;
S. 4(1) def. of reserve fund amended by No. 76/1988 s.4.
reserve fund in relation to a trustee company means the fund established and kept by the trustee company under Part VI;
S. 4(1) def. of related corporation substituted by No.44/2001 s.3(Sch. item118.1(b)).
related corporation of a body corporate, means a body corporate that is related to thatbody corporate within the meaning of section 50 of the Corporations Act;
S. 4(1) def. of spouse inserted by No.27/2001 s.8(Sch. 6 item 8.1).
spouse of a person means a person to whom the person is married;
subordinated loan means a loan which is unsecured and the terms of which are evidenced by an instrument in writing which expressly provides that the rights of the lender are subordinated to all other creditors of the borrower;
trustee company means a corporation that, under section 6 or 7, is, or is authorized to carry on business as, a trustee company and has not, under section 8 been declared not to be a trustee company;
S. 4(1) def. of voting shares amended by No.44/2001 s.3(Sch. item118.1(a)).
voting shares has the same meaning as in the Corporations Act;
will includes codicil and any other testamentary disposition.
s. 4
(2)In this Act, a reference to entering into a transaction in relation to shares includes—
(a)a reference to entering into or becoming a party to an agreement, arrangement, understanding or undertaking, whether formal or informal and whether express or implied, in relation to shares; and
(b)a reference to exercising an option to have shares allotted.
S. 4(3) substituted by No.44/2001 s.3(Sch. item118.2).
(3)A person is an associate of another person if the person would be an associate of the person under Division 2 of Part 1.2 of the Corporations Act.
S. 4(4) amended by No. 46/1998
s. 7(Sch. 1).
(4)The Minister, by notice published in the Government Gazette—
(a)may declare a corporation or a corporation included in a class of corporations to be a financial institution for the purposes of this Act; and
(b)may revoke or amend any such declaration.
S. 4(5) inserted by No.27/2001 s.8(Sch. 6 item 8.2), substitutedby No.12/2008 s.73(1)(Sch.1 item62.2).
(5)For thepurposes of the definition ofdomestic partnerin subsection(1)—
(a)registered relationship has the same meaning as in the Relationships Act 2008; and
(b)in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and
(c)a person is not a domestic partner of another person only because they are co-tenants.
5Acquisition or disposal of and entitlement to shares
s. 5
(1)For the purposes of this Act, a person shall be taken to acquire shares in a trustee company (inthis subsection referred to as the shares concerned) if, and only if—
(a)the person acquires a relevant interest in the shares concerned as a direct or indirect result of a transaction entered into by or on behalf of the person in relation to those shares, in relation to other securities of that company or in relation to securities of any other corporation; or
(b)the person acquires any legal or equitable interest in securities of that company or in securities of any other corporation and, as a direct or indirect result of the acquisition, another person acquires a relevant interest in the shares concerned.
(2)For the purposes of this Act, a person shall be taken to dispose of shares in a trustee company if, and only if, having a relevant interest in those shares, the person ceases to have a relevant interest in those shares as a result of the doing of any act, the entering into of any transaction or the occurrence of any circumstance.
(3)For the purposes of this Act—
(a)the shares in a trustee company to which a person is entitled include—
s. 5
(i)shares in which that person has a relevant interest; and
S. 5(3)(a)(ii) amended by No. 46/1998
s. 7(Sch. 1).
(ii)except where the person is a nominee corporation in respect of which a certificate of the Minister is in force under subsection (4)—shares in which an associate of that person has a relevant interest; and
S. 5(3)(b) substituted by No.44/2001 s.3(Sch. item118.3).
(b)a person has a relevant interest in a share in a trustee company if, by reason of sections 608 and 609 of the Corporations Act, the person would have a relevant interest in that share for the purposes of that Act.
S. 5(4) amended by No. 46/1998
s. 7(Sch. 1).
(4)The Minister may, in the discretion of the Minister, issue to a nominee corporation a certificate declaring the nominee corporation to be an approved nominee corporation for the purposes of this Act and may at any time, in the discretion of the Minister, by notice in writing to the nominee corporation, revoke the certificate.
S. 5(5) amended by No.44/2001 s.3(Sch. item118.4).
(5)Unless the contrary intention appears, words and expressions used in this section have the same meanings as they have in the Corporations Act.
s. 5
______
Part II—Authorization of Trustee Companies
6Trustee companies
s. 6
Subject to section 8, each of the corporations mentioned in Schedule 2 is a trustee company.
7Authorization as trustee company
S. 7(1) amended by No. 46/1998
s. 7(Sch. 1).
(1)A corporation may apply to the Minister for authority to carry on business as a trustee company.
S. 7(2) amended by No. 46/1998
s. 7(Sch. 1).
(2)The Minister may request the Commissioner to prepare a report on an application under subsection (1), or any part of such an application.
S. 7(3) amended by No. 46/1998
s. 7(Sch. 1).
(3)The Minister or the Commissioner may require an applicant to supply such information as the Minister or the Commissioner thinks necessary in relation to the application.
S. 7(4) substituted by No. 76/1988 s.5(1), amended by No. 46/1998
s. 7(Sch. 1).
(4)The Minister may authorise a corporation to be a trustee company, subject to such conditions (ifany) as are prescribed either generally or in relation to a particular corporation.
S. 7(5) amended by No. 46/1998
s. 7(Sch. 1).
(5)Subject to section 8, a corporation authorized by the Minister under subsection (4) is a trustee company.
S. 7(5A) inserted by No. 76/1988 s.5(2).
(5A)Regulations made under this section may be disallowed in whole or in part by resolution of either House of the Parliament in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962.
S. 7(5B) inserted by No. 76/1988 s.5(2).
(5B)Disallowance under subsection (5A) is deemed to be disallowance by Parliament for the purposes of the Subordinate Legislation Act 1962.
(6)Notice of an authorization under this section shall be published in the Government Gazette.
S. 8 substituted by No. 76/1988 s.6.
8Suspension or revocation of authority
s. 8
S. 8(1) amended by No. 46/1998
s. 7(Sch. 1).
(1)If the Minister is satisfied that a corporation that is a trustee company has failed to comply with a condition to which its authorisation under section7 is subject, the Minister may, by notice published in the Government Gazette declare—
(a)that the corporation's authorisation as a trustee company is suspended either for the period specified in the notice or indefinitely; or
(b)that the corporation is not a trustee company.
(2)If a declaration is made under subsection (1)—
(a)the corporation must not, during the period of suspension or, if the declaration was made under subsection (1)(b), after the making of the declaration—
(i)accept appointment as an executor; or
(ii)apply for probate or a grant of administration; or
(iii)be appointed under section 14; or
(iv)establish a common fund; and
(b)except as provided in paragraph (a), this Act continues to apply to the corporation and so applies, in the case of a declaration made under subsection (1)(b), as if the corporation were a trustee company.
S. 8(3) amended by No. 46/1998
s. 7(Sch. 1).
(3)If the Minister is satisfied that a corporation that is a trustee company has ceased to carry on business as a trustee company, the Minister may, by notice published in the Government Gazette declare that the corporation is not a trustee company.
s. 8
______
Part III—Powers of Trustee Companies
No. 6402 s. 4.
S. 9
amended by No. 74/2000 s.3(Sch. 1 item133).
9Trustee company may act as executor or administrator
s. 9
Where a trustee company is named either alone or jointly as executor in the will of a testator (whether the will was made before or after the commencement of this section) the trustee company may act as executor, and may apply for and obtain probate of the will of the testator and may perform and discharge all the acts and duties of an executor as fully and effectually as an executor who is a private individual.
No. 6402
ss 6, 7.
10Authority for trustee company to obtain probate
(1)Where a person is named expressly or by implication as executor and is entitled to obtain probate of the will of a testator, that person may—
(a)instead of applying personally, authorize a trustee company to apply for and obtain probate of the will; or
(b)join with a trustee company in an application for a grant of probate of the will to the person and the trustee company jointly.
(2)An application under subsection (1) may be granted unless the testator has by will expressed the desire that the office of executor is not to be delegated or that the trustee company so applying is not to act in the trusts of the will.
No. 6402
ss 5, 8.
11Authority for trustee company to obtain letters of administration
(1)In any case in which a person may apply for and obtain a grant of letters of administration of the estate of a deceased person (whether with or without the will annexed), that person may—
(a)join with a trustee company in an application for a grant of letters of administration to the person and the trustee company jointly; or
(b)instead of applying personally, authorize a trustee company to apply for and obtain a grant of letters of administration to the estate.
(2)Where—
(a)a person joins with a trustee company in an application under subsection (1); or
S. 11(2)(b) amended by No. 45/1994 s.42(Sch. item 13.2).
(b)a trustee company makes an application that it has, pursuant to subsection (1)(b), been authorized to make—
the Supreme Court may grant letters of administration of the estate in accordance with the application.
(3)Where administration of any estate with or without the will annexed is granted to a trustee company either alone or jointly with any other person, that trustee company may do and perform all acts and duties which belong to the office of administrator or administrator with the will annexed, as the case may be, as fully and effectually as an administrator who is a private individual.
S. 11A inserted by No. 84/1991 s.16.
11AElection by trustee company to administer estate
s. 11A
(1)A trustee company may file an election in the prescribed form to administer an estate in the office of the Registrar if—
(a)no grant of administration has been made to any person; and
(b)the trustee company would be entitled to a grant of administration.
(2)A trustee company may file an election in the prescribed form in accordance with the regulations to administer the estate of a testator in the office of the Registrar if—
(a)no grant of probate of the will or administration with the will annexed has been made to any person; and
(b)the trustee company would be entitled to a grant of probate of the will or of administration with the will annexed.
(3)The filing of an election is to be taken to be the grant of administration or probate to the trustee company.
(4)This section applies to an estate the gross value of which is estimated by the trustee company at the time of the election not to exceed $50 000.
s. 11A
(5)An election cannot be filed—
(a)if there is in force a caveat against any application for probate or administration lodged with the Registrar; and
(b)until the expiry of 14 days after the publication in a daily newspaper circulating generally throughout Victoria of a notice of intention to file the election; and
(c)unless there is attached an inventory of the estate.
(6)Within one month of the filing of an election the trustee company must publish notice of the election in a daily newspaper circulating generally throughout Victoria.
(7)A notice of election is conclusive evidence that the trustee company is entitled to administer the estate to which the election relates.
(8)Even though an election has been filed any person may apply to the Court for a grant of probate or administration.
(9)The Court may grant an application on any terms and conditions the Court thinks fit and may revoke the election.
(10)If after filing an election the gross value of the property to be administered is found to exceed the sum of $60 000 the trustee company must as soon as practicable file with the Registrar a memorandum stating the fact and apply in the same manner as any other person for a grant of probate or administration (as the case requires).
(11)A trustee company must file a revocation of an election in the office of the Registrar if the trustee company finds that—
(a)the deceased who was believed to have died intestate has died leaving a will; or
(b)the document annexed to the election as the testator's last will has been revoked by a later will; or
(c)the document annexed to the election has no testamentary validity because the deceased died intestate.
(12)In this section, Registrarmeans the Registrar of Probates and Administration of the Court.